LAWS(CAL)-2015-9-186

UNITED MACHINERY & APPLIANCES Vs. GREAVES COTTON LIMITED

Decided On September 16, 2015
United Machinery And Appliances Appellant
V/S
GREAVES COTTON LIMITED Respondents

JUDGEMENT

(1.) The defendant has filed an application under Sections 5 and 8 of the Arbitration and Conciliation Act. The defendant says that by reason of the agreement dated 2nd January, 2007 entered into by and between the parties, the disputes are required to be resolved by arbitration inasmuch as the Court at Mumbai having exclusive jurisdiction to try and determine any dispute arising out of the said agreement.

(2.) Mr. Jishnu Chowdhury, learned Advocate appearing on behalf of the plaintiff has referred to the plaint and submitted that the cause of action is not based on the agreement of 2007 and the same would be evident from paragraph 3 of the plaint. It is submitted that the dispute in the instant suit is arising out of agreement pleaded at paragraph 3. Mr.Chowdhury has further referred to paragraph 3 of the petition filed by the respondent wherefrom it appears that the respondent has filed an application being GA No.2232 of 2015 praying for leave to file written statement by the defendant. It is submitted that in view of the said application right if any to have the dispute referred to arbitration even if it is assumed to be covered and forming subject matter of the suit, is not maintainable as there is a clear waiver of right.

(3.) The application is in the nature of demurrer. On the basis of the pleadings it is not possible at this stage to arrive at a definite finding that the claim pleaded by the plaintiff and the agreement relied upon by the applicant under the proceeding are one and an extension of earlier agreement of 2000. Moreover, it appears that the defendant has filed an application seeking an extension of time to file written statement by eight weeks from the date of the order. The applicant cannot deny that such an application has been filed after the service of the Writ of Summons accompanied by a copy of the plaint. Although the applicant may not have filed the written statement dealing with the subsistence of the dispute but the applicant has decided to contest the suit by filing a written statement which would be in derogation of a right to have the dispute referred to arbitration and accordingly, there is a case of waiver of right to object the jurisdiction of this Court. The applicant cannot be heard to contend at this stage that the applicant was not aware of the nature of the dispute when the application for extension of time to file written statement was filed before this Court. Filing of the said application clearly shows that the applicant is willing to have the dispute decided by a Civil Court and not by arbitration.